“Early Pathway” expungement interpreted by NJ Supreme Court

By Maynard & Sumner, LLC of Maynard & Sumner, LLC posted in Expungement on Tuesday, July 10, 2012.

Prior to 2010, a person was required to wait ten years before he or she could expunge an indictable offense conviction and drug offenses consisting of over 25 grams of marijuana or 5 grams of hashish were ineligible for an expungement. In order to increase employment opportunities for New Jersey’s citizens, the state legislature amended the law, affording one-time offenders the opportunity to expunge an indictable offense after five years and third and fourth degree CDS crimes. In order to be granted, the court must determine whether it is in the public interest based on the evaluation of the nature of the offense and the petitioner’s character and conduct.

Since the passage of the law, few cases have tested the meaning, or interpretation, of the statute. On July 9, 2012 in the case In re Kollman, Jr., Petition for Expungement, the petitioner Kollman was denied an expungement under the “Early Pathway” provision. Kollman was convicted of one count of third-degree distribution of a CDS in 2001, and completed all conditions of his sentence in September 2002. In support of his petition, the petitioner supplied the court with proof of completion of college, full-time employment, and community service, along with twenty-one letters positively describing his character, work ethic and personal growth since the conviction.

The trial court recognized that it is the burden of the State to prove that an expungement is not in the public interest based on the preponderance of the evidence. With that in mind, the trial court denied the expungement based on the serious nature of the offense and the type of drug that was involved, which was the distribution of narcotics. The Appellate Division affirmed. The Supreme Court found that the trial court did not properly weigh the nature of the offense against the supporting evidence of the petitioner’s reformed character. The Court states, “Generic concerns aside, our balancing of the factors that remain in the record at this time suggests that expungement would be in the public interest.” The New Jersey Supreme Court reversed the Appellate Division’s decision and remanded the matter to the trial court for further proceedings consistent with the Supreme Court’s opinion.

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